The New Mexico Water Quality Control Commission enacted what is arguably the most comprehensive copper mine remediation rule in the country. The Copper Rule requires copper mines to uniformly implement prescriptive measures of pollution control and to protect ground water at “foreseeable places of withdrawal.” But does the Copper Rule really prevent pollution, as required by the New Mexico Water Quality Act? Not so, say the Attorney General and various NGOs, who appealed the case to the New Mexico Court of Appeals. They claimed that the Copper Rule’s uniform monitoring criteria, which require the placement of a monitoring well network as close as practicable around the perimeter of mine units, does not sufficiently protect ground water and therefore fails to satisfy the Water Quality Act’s mandate that contaminant concentrations not exceed permissible standards at places of withdrawal. The Court of Appeals affirmed the Commission’s rule-making in Gila Resources Information Project v. N.M. Water Quality Control Comm’n, holding that the determination of a “place of withdrawal” has always been and remains a matter committed to the Commission’s discretion. [Link to Case.]

The New Mexico Supreme Court will now consider whether the New Mexico Water Quality Control Commission has the authority, under the Water Quality Act, to adopt the regulations imposing prescriptive pollution controls and defining by rule, rather than on a case-by-case basis, the type of monitoring controls which essentially define protectable ground water as that existing on the exterior of active mine units. After a number of swings of the bat, the petitioners in the Supreme Court have refined their arguments. They now claim that the Water Quality Act requires a case-by-case determination of a place of withdrawal, based on particular aquifer characteristics, rather than a definition derived by rule. To succeed with this challenge, the petitioners must overcome the legislature’s mandate, in the 2009 amendments to the Water Quality Act, that the Commission adopt uniform monitoring requirements for the entire copper industry. The battle seems to be whether the Copper Rule is sufficiently flexible to protect all places of withdrawal – regardless of where located – or whether the rule imposes a de facto definition of a place of withdrawal based on criteria that may not be tailored specifically to the aquifer characteristics at a particular site. Oral argument is set for September 28, 2016.

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